ASOPA, J. - (1.) WITH the consent of the parties, the matter was heard finally and is being decided.
(2.) THE facts, in beief, of the case are that the petitioner Heera Lal was one of the non-petitioner before the Election Tribunal. He was served with the notice on 5. 5. 2005 and was required to file the reply by 3. 8. 2005 as per provisions of Order 8 Rule 1 of CPC, but the reply was filed on 5. 9. 2005. THE reason for delay was that the reply was prepared prior to 3. 8. 2005, but by inadvertence the same was misplaced by his Advocate in some other file. on being tracing out the same, the reply was filed on 5. 9. 2005, therefore, the time for filing reply may be extended. No reply to the writ petition has been filed by the respondents. Submission of counsel for the petitioner is that there was no deliberate and intentional delay in filing the reply rather the same was by inadvertence and as the reply was misplaced by the Advocate in some other file. The Court has committed an illegality in not considering the said reason as not sufficient. Submission of counsel for the respondents (herein) is that there is no sufficient cause for filing reply within 90 days and the Election Tribunal has rightly not taken the aforesaid reply on record. In view of the successive judgments of the Supreme Court and this Court, the parties do not dispute the fact that the provisions of Order 8 Rule 1 of CPC are directory.
(3.) HEARD counsel for the parties and gone through the record of the writ petition and further considered rival submissions of the parties. This Court in case of Satish Chandra vs. Additional District Judge, Baran & Ors.- SB Civil Writ Petition No. 2592/2005 has held that provisions of Order 8 Rule 1 of CPC are directly and further for rejecting/accepting the application for extension of time, cogent reasons have to be assigned. Para 16 of the said judgment is as follows:- " 16. In view of the aforesaid judgments of Hon'ble the Supreme Court as well as of this Court, I am of the view that now there cannot be any dispute with regard to the fact that provisions of Order 8 Rule 1 CPC being procedural in nature are directory and further the Court has to assigned the reasons for its exercising of discretion to extend the time even beyond 90 days and the cogent reasons have to be assigned while rejecting the application for not taking the written statement on record and further even in case the Court has wrongly extended the time, then a litigant cannot be allowed to suffer for the mistake committed on the part of the Court on account of the maxims actus curiae neminem gravabit. The submission of counsel for the petitioner is that reply was prepared under his instructions and signed by him before the expiry of 90 days and he was confident that his lawyer would file the same, but the same was misplaced, therefore, there was no intentional inaction, deliberate omission or misdeameanour of his counsel. Even if the stand taken by the lawyer is found to be incorrect then also he should not suffer for the same. Counsel for the petitioner has placed reliance on Rafiq & Anr. vs. Munshilal & Anr. , AIR 1981 SC 1400. The relevant portion of para 3 of the judgment is as follows:- " 3. . . Where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. . . . " ;